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December 18, 2005


Agreeing with everything above, I was still somewhat taken aback by your suggestion of impeachment over at WM. Basically on the grounds that you brought up, that another impeachment after Clinton's might make impeaching a president a normal thing to do and no longer somethign considered reserved for extraordinary circumstances. This isn't to say that I consider Bush's actions here to be a normal thing to do, but that even a carefully targeted and narrowly tailored impeachment might expand beyond the bounds we want for it.

Maybe this wouldn't be such a terrible thing. It could just make impeachment like a vote of no confidence in parliamentary systems. The problem with that is that prime ministers always have, at least intially, either a majority or a coalation behind them in the legislature, and we don't have any similar requirement.

Another fine post. I'll say again that your calling for impeachment is kind of like my calling for the arrest of Usama bin Laden. The people who can do it aren't listening.

My soon-to-be-eleven year-old son overheard my wife ask if I thought our phone had been tapped. We all had a laugh over the thought of some analyst trying to understand her weekly conversation with my mother-in-law, conducted in a Saarlandish that is hard for most German speakers to follow, only to find out that it's about gall stones, village gossip and the like. When I explained that FISA has a money damages provision, he piped up: 'So we can get rid of Bush and get rich too? What's not to like?'

Count another fan of impeachment.

washerdreyer: as one of the most temperamentally conservative liberals you're ever likely to (virtually) meet, I was sort of taken aback by me too. But I really think that ordering a flatly illegal government policy is beyond the pale. I mean: I don't see how this isn't just saying: screw the law; screw the Constitution; I can do whatever I want.

To me, that's impeachable.

This is an extraordinary admission. But since some of our friends on the right are having difficulty understanding why, I thought I'd spell it out.

Is there any coherent right wing discussion of this issue?

It reminds me of the Plame episode, in which they disappeared off the deep end with factual nonsense (not a NOC, etc.), pure fantasy (it was all a vast CIA conspiracy which required the outing to defend the president), or irrelevant and flat out false ad hominem (Wilson was a big liar, etc.).

The Republican culture of corruption seems to include the corruption of rational thought.

More entries for the list.

Growing deficits are better than tax increases on the wealthiest.

Utter failure at disaster management is better than tax increases on the wealthiest.

Torture of innocent people is better than tax increases on the wealthiest.

Total disregard for the rule of law is better than tax increases on the wealthiest.

It's getting kind of interesting to see just how far the principle of plutocratic rule will go before more Republicans decide that maybe tax increases on the wealthiest are in fact not the greatest of all possible sins.

Just to play devil's advocate, I'd point out that someone like Yoo might see a loophole in footnote #8 in the case cited above.

Happy Jack: here is where it becomes relevant that FISA was passed after that case, and it altered the text pf the statute referred to in fn 8. The current version of the statute is here. Note especially 2 e-f:

"(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

I don't see how this isn't just saying: screw the law; screw the Constitution; I can do whatever I want.

It is. I'm sure others will appreciate your fine, calm, factual delineation of why Bush has committed a crime. But the simpler version puts our situation more clearly, and gets across the urgency of it.

Laura Rosen

Explains a little. Apparently soon after 9/11, and for who knows how long after, all communications, all, in and out of Afghanistan was under surveillance. That, would include, as Laura says, Peter Bergen calling his sources.

I don't think even the FISA court could authorize such a blanket intercept.

I also like this quotation these days, from "Democracy in America":

"Unlimited power is in itself a bad and dangerous thing. Human beings are not competent to exercise it with discretion. God alone can be omnipotent, because his wisdom and his justice are always equal to his power. There is no power on earth so worthy of honor in itself, or clothed with rights so sacred, that I would admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws."

A republic, madam: if you can keep it.

I do find it amazing how the number of civil libertarians on the right (and center, for that matter) seem to be countable with just a smidgen more than the fingers on one hand. What a bunch of authoritarians they all turn out to be.

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.

But hey, everything changed on 9/11.

hilzoy- FISA isn't the loophole I was thinking of. Read the last few sentences of the footnote.

The Keith case is limited to a "domestic" situation. The Court didn't rule on a wartime case concerning "foreigners". I suspect that the Administration would argue that there is no precedent limiting their inherent authority during war.

In light of some recent cases, however, I'm not sure that they would have a winning argument, but with a change in the make-up of the Court, I suppose it's possible.

One interesting argument, which I've seen alluded to (so I'm not really sure it's THE argument intended) is that executive power to take certain actions absent specific authorization may be implied from other similar congressional authorizations. See Dames & Moore v. Regan, 453 U.S. 654 (1981).

So since the Pres. can do this and that based on PATRIOT, or whatever (maybe that's why he needs PATRIOT renewed?). he can do this. I haven't gotten into the relevant 'other' legislative grants enough to express an opinion on that, but I will say that the relevant FISA provisions do not represent an absence of Congressional approval, but rather a express rejection of certain activities. If Youngstown Steel means anything in these times, it means that the President's power is at it's lowest ebb in the face of such legislative disapproval.

I also think if I were arguing against the President on this one (which I am...), I'd have an easy time distinguishing Dames & Moore on the facts.

I remain baffled as to WHY the president would do this. FISA presents such a low bar - just a basic sniff test that you are in fact snooping on bad people, essentially.

OH before I forget, I think I saw someone, somewhere, say that typically warrants apply to a specific person or place, and since we don't really know who we are listenting to, warrants might no be available. That's a non-laughable argument, but still a loser in my eyes - you might have some difficulty getting evidence admitted, but this isn't about admissible evidence, it's about actionable evidence.

Sorry for the ramble...

Katherine showed, charleycarp is aroundm but my question wasn't answered

Are blanket warrants, say for everyone with an Arabic surname in New York City, ever ever possible, even under FISA?

They tapped every phone call to Afghanistan from anywhere in the US. Is any court approval even conceivable? And honestly, if they actually did it, NSA probably would be unhappy that we now know it is technically possible.

Giblets nails it:

"So George Bush secretly authorized the NSA to spy on Americans without warrants or judicial oversight. Oh, it violates your civil liberties, oh, it illegally breaks the Foreign Intelligence Surveillance Act, oh, that tape of you and your boyfriend having phone sex has been playing in the NSA break room for a month and a half. Well boo hoo hoo! Do you hear that sound, America? It is the world's tiniest violin playing just for your civil liberties. You can hear it in excellent quality sound because it has been bugged by the NSA. (...)

"Oh but Giblets the president's executive order is illegal" you say. That's the kind of namby-pamby whining that would have the U.S. follow "international opinion" and "the Geneva conventions" and "U.S. law." Well America is the greatest country in the world, and it's not gonna run around getting permission slips from America before it defends itself!"

I don't know a blessed thing about FISA bob. I know you have to go before a judge/magistrate & they almost never turn you down, but that's all I know.

charleycarp is around

Not at 2:30 a.m.!

I don't know the answer. I suppose one would have to look at the FISC decisions, and I've not got the time today.

"I suppose one would have to look at the FISC decisions, and I've not got the time today."

I wasn't being snarky or critical or demanding, just amazed. I though the answer would be instant and unequivocal that the gov't could not in any venue under any circumstances get permission to wiretap everyone named "Jones."

That the answer needs research is appalling.

Hal: "I do find it amazing how the number of civil libertarians on the right (and center, for that matter) seem to be countable with just a smidgen more than the fingers on one hand. What a bunch of authoritarians they all turn out to be."

Haven't you gotten the word yet? 'The check is in the mail' is now the #2 most common lie (believe it or not, "I'll respect you in the morning" never got above #5).

The official #1 lie in the USA is: "I'm a libertarian".

This doesn't mean that there are no actual, real libertarians, of course, but it does mean that, when confronted with a claimant, the smart money is on "he's lying".

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